On 25th September 2024, the Advertising Standards Authority (“ASA”) upheld a ruling against Nike and its authorised seller, The Sole Supplier, concluding that a paid-for advert promoting a deal available on a pair of Nike trainers was misleading and should not be shown again. This ruling forms part of the ASA’s wider piece of work on ‘online choice architecture’ (OCA), and so-called ‘dark patterns’.
OCA is the designs, systems, and procedures that a website or software developer/operator implements to facilitate the decision-making of its end users. While this is not a problem in itself, OCA can be used in ways that are viewed by regulators as deceptive, confusing or misleading, and that potentially cause consumer harm. For more information on the misleading use of OCA, please see the following CMS Law Now: The growing regulatory scrutiny around “dark patterns” and an update on consumer law reforms in the UK (cms-lawnow.com)
Background
In December 2023, a paid-for advertisement on ‘X’ (formerly Twitter) for The Sole Supplier featured an image of a pair of Nike trainers. The caption accompanying the image read “Now just £26 at Nike! [exploding head emoji] [black heart emoji].” The ad clicked-through to a product listing on the Nike website, where it became apparent that the advertised discounted Nike trainers were targeted at older children and limited to sizes UK 3-6 only.
Nike insisted that the ad, which it said was created and produced by The Sole Supplier without Nike’s involvement, was not misleading, arguing that the (fairly modest) promotional price and the caption used meant that a reasonable consumer would assume that there would be some limitation on the item, for example the availability of sizes. Nike believed that the lack of complaints received supported this notion. The Sole Supplier made similar arguments, citing the fact that their ad guided users to a site containing more detailed information about the trainers, including the specific sizes available.
Ruling
The ASA stated that the CAP Code required that marketing communications did not mislead consumers by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner. Specifically, the ASA noted that there was no evidence in the advert to indicate to consumers that the trainers were intended for older children or that they were not available in adult sizing at that price. The ASA also noted that there was no visual cue to indicate the smaller size of the shoes available at the discounted price point. Taking this into account, the ASA’s conclusion was that the reasonable consumer would assume that the advertised trainers were for adults.
Furthermore, in the ASA’s view the text “Now just £26” alongside an exploding head emoji suggested a heavily discounted deal on offer; on the basis that VAT is not payable on children’s shoes, the ASA reasoned that the average consumer would not regard £26 as a heavily discounted price for children’s trainers, and thus the average consumer would expect to be able to purchase a pair of adult trainers at the offered price.
The ASA did acknowledge that the page linked from the ad provided clear information regarding availability and sizes. However, this information was provided too late in the process to avoid misleading consumers, who would have engaged with the ad on the basis of a misleading omission.
The ASA concluded that the ad was misleading by omission, and ruled that it should not appear again in the same form.
Key points for retailers
The problem for Nike here was that the implication that the shoes were for adults lured people into clicking on the link. Generally, the more information an advertiser can provide up-front about any limitations on an offer – in this case, on availability – the less the risk of misleading consumers. Any advertiser using a price promotion should consider the availability of the promoted products, and, if it is significantly limited, disclose that up-front.
Price transparency is a key area of focus for the ASA and other regulators at the moment, and the law on price representations will soon be significantly reformed when the consumer law provisions of the Digital Markets, Competition and Consumer Act 2024 come into force, expected to be in April 2025. This is therefore a good time to make sure your pricing practices are compliant. Do get in touch with us for more information.
Article co-authored by Jack Kahn, Trainee Solicitor at CMS.
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